Sunday, January 23, 2011

Why we should be ashamed of the Indian judiciary - and what we can do to fix it

While most Indians are ashamed of the corruption which riddles the bureaucracy , the police forces and the political system in this country, most take pride in how upright our judges are . The general belief is that judges are people of integrity and that they can still be trusted to deliver justice.

The reality is completely different ! It's not that our judges are corrupt - it's just that the system is so inefficient, that no Indian citizen really trusts the judiciary to dispense justice.

In fact, most good lawyers tell their clients that it's better to settle outside the court rather than to fight ! The only ones who seem to benefit from the interminable delays are the lawyers - and the guilty parties, who know they can get away with impunity for whatever they do, because the judiciary will take for ever and ever to bring them to book !

While I do not believe in conspiracy theories, keeping the judicial system so grossly inefficient seems to be a deliberate ploy by politicians and bureaucrats to ensure that citizens will come running to them for "alternate dispute resolution". This is why "fixers" still thrive in India - and while the judges do not actively encourage their growth, the fact that the judges continue to tolerate a system ( which they refuse to fix ) which is so inefficient and slow means they are willing to live within an unjust system of dispensing justice.

If you are not part of the solution, you are part of the problem ! There's no point in our judges being men of honour if they continue to be part of a system which can take upto 25 years to deliver a judgment. Justice delayed is justice denied - and the fact that Indians are so reluctant to go to court suggests that they do not feel they will get a fair deal within the present court system.

Part of the problem is the rigid pecking order and hierarchical seniority system in the judiciary. Even though young justices may be full of ideals, by the time they become senior enough to carry enough clout, they are likely to become jaded and cynical and are resigned to accepting the status quo as being the best we can do within the limitations of "our system". The judiciary needs to adopt creative destruction ( ala Schumpeter ) in order to evolve.

It's ridiculous that we still use a judicial system which was designed 200 years ago, in exactly the same fashion as when it was first designed. It's fine to take pride in our traditions - but not at the cost of being unjust to our citizens !

I'd like to propose a simple solution which will allow the judiciary to retain its strong points and fix its weaknesses !

The Chief Justice of each High Court ( and the Supreme Court) should appoint the youngestjudge as the Chief Iconoclast . His brief should be to innovate and use new technology to improve the productivity and efficiency of the court ! There are many possible solutions - and we can adapt and learn from other fields and other countries !

Allow online submission of briefs ? video conferencing ? set up more fast track courts ? insist on alternative dispute resolution for some matters ? The young judges could be appointed as champions of each of these disruptive innovations, and encouraged to experiment with them, till they come up with a better solution.

These judges should be encouraged and charged to " think out of the box"; take risks ; and accept challenges. These are the judges who have the most at stake , because they will be spending the rest of their life in the Court.Why not let them can make a meaningful contribution when they are in the prime of their professional career ? This approach will give them a chance to shine when they are at their professional peak. They are young and are comfortable with using the new technology. Also, they do not carry much emotional baggage ( as compared to some senior judges who accumulate a lifetime's worth of archaic ideas and practises) and are likely to be open minded and nimble in their approach.